26 Aug Family Law Q&As
Do All Family Law Matters Have To Go To Court?
Short answer is no!
Statistics show that approximately 85% of family law disputes are resolved without the Court being required to make any decision. In other words, people have been able to reach agreement between themselves and have only used the Court services to formalise that agreement by filing their Consent Orders
Further, of the cases that are filed with the Court for determination, only approximately 2% of those cases actually proceed to a final determination by a Judge. The remaining 13% of cases are settled after the case has been filed in Court but before final determination by a Judge.
These statistics emphasise that only a very small proportion of all family law disputes require the Court to make a determination. In most cases, the Court’s involvement is only to provide formality and finality to the agreement.
How do I achieve a final property division without the expense, delay and stress of going to Court?
Below is my step-by-step guide on how to avoid going to Court.
- Invest in obtaining your own independent and expert legal advice early on.
The choice of a family lawyer is crucial to the outcome of your matter and the way it progresses.
Family law is a specific area that requires both quality, personalised service and targeted expertise. It can be a stressful and complex area of law that requires broad legal expertise that could run over into property law, estate law, commercial law and even criminal law.
Obtaining legal advice early on, will provide you with invaluable knowledge in advising what your entitlements are to assist you with reaching a fair agreement with your former spouse.
- Make sure you have all the necessary information, whether financial or non-financial, from the other party which you are legally entitled to.
Parties to financial family law cases have an ongoing duty to disclose the material facts relating to their financial position. The necessary information you are legally entitled to include:
• any interest you both have in any property;
• any income you both receive from employment or business interests;
• any interest in a trust, as an appointor, trustee or beneficiary or if you are a shareholder or director of a corporation which is the beneficiary of a trust;
• any interest in a corporation;
• any gift made or property you have disposed of since separation;
• any financial resources eg interest in a deceased estate, interest in a family trust as a discretionary beneficiary, entitlement to a pension.
- Negotiate, negotiate, negotiate! Either alone or with the assistance of your legal representative.
Direct negotiation between parties works best if parties have a reasonably amicable relationship and can communicate about their issues directly.
Negotiations through legal representatives is where each party engages their own solicitor to help them reach an agreement. This can involve written negotiations and/or face to face negotiations such as a “round table conference” (where both parties and their solicitors meet to resolve matters).
- Formally document the agreement with a legally binding property settlement by either:-
a. Court Orders made by consent; or
b. A Financial Agreement under the Family Law Act.
Do you want to keep your Family Law matter out of court? Contact Solari and Stock Miranda on 8525 2700 or click here to request an appointment with one of our Family Law team.